IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

Civil Action No. HPP 03 of 2023
In the Estate of Rupeni Talakuli No. 3 late of Eddie Wong Road, Kashmir, Lautoka, died Intestate.

BETWEEN: 	MERI CAUCAUNITABUA of Natabua Prison Compound, Lautoka, Housekeeper.
PLAINTIFF

AND:	LITIANA NAQILAI of Vuda Backroad, Lautoka, Domestic Duties.
DEFENDANT

BEFORE:		      Hon. Mr Justice Vishwa Datt Sharma

COUNSEL:		Ms Raikaci N. for the Plaintiff/Applicant
                              Mr Daveta F. for the Defendant/Respondent

Date of Decision:     05th October, 2023 @ 9.30am

DECISION

[Summons seeking an order that the processing of the Defendants claim for compensation by ACCF be suspended and Defendant to surrender Letters of administration grant to the Court)

Introduction
1.	Before Court is a Two-Tier applications commenced by a Summons and an Affidavit in Support wherein the Plaintiff/Applicant seeks the following orders-

a.	That the processing of the Defendant’s claim for Compensation by the Accident Compensation Commission [ACCF] to be suspended, and 
b.	That the Defendant to surrender the Letters of Administration grant No. 70446 pending the outcome of this Action with costs.

2.	Further,  the Plaintiff/Applicant by its Writ of Summons and the Amended Statement of Claim seeks for the following orders:

i)	That the grant of Letters of Administration No: 70446 issued to the Defendant on 11th day of November 2022 be recalled and revoked.

ii)	That the Plaintiff be issued with the grant of the Administration in the estate of the deceased Rupeni Talakuli No: 3.

iii)	That processing of the Defendant’s claim for compensation by the Accident Compensation Commission be suspended forthwith pending the outcome of this action.

iv)	That the Plaintiff be paid the compensation for the fatal injuries sustained by the Deceased at his workplace by the Accident Compensation Commission.

v)	Any further order this Court may deem just under the circumstance.

vi)	Costs.

3.	The Defendant/ Respondent has filed his Affidavit in Response to the Affidavit in Support of the Plaintiff.

4.	It is noted by the Court and drawn to the attention of the Counsel’s representing parties to the proceedings that the Cause of Action at the current stage of the proceedings stood incomplete in respect of the substantive Writ of Summons and the Statement of Claim in terms of the High Court Rules, 1988 for the orders sought therein. The Plaintiff/ Applicant seeks for an order to recall and revoke the Letters of Administration grant no. 70446 and the Plaintiff be issued with the Letters of Administration grant together with the claim for compensation by the Accident Compensation Commission to be suspended since the Plaintiff reckons that she is a beneficiary in the deceased’s estate. 

5.	However, one thing is clear that the Plaintiff/Applicant, Meri Caucaunitabua within the Summons filed coupled with the Affidavit in Support in its entirety more or less seeks the same orders as reflected in the Writ of Summons and the Statement of Claim with the exception of the grant of Letters of Administration in the Deceased’s Estate to her. 

6.	Since the Response Affidavit has been filed to the Plaintiff’s/Applicant’s application, and that both parties to the proceedings have furnished written submissions to the Court, it is only fair and proper that I proceed to hear and determine the orders sought therein by the parties.

Facts of the Case

7.	That the Plaintiff is the surviving De-Facto wife of the late Rupeni Talakuli No.3.

8.	That the Defendant is the wife of Rupeni Talakuli No. 3.

9.	Late Rupeni Talakuli No. 3 died intestate on 08th August 2023.

10.	The deceased and the Defendant were married on 24th July 2008 and in or about April 2020, the Deceases and the Defendant had separated. The Defendant has been having an adulterous relationship with one Epeli Vadei.

11.	Neither the Defendant nor the Plaintiff/Applicant have any issues with the deceased.

12.	The Defendant was granted with Letters of Administration Grant No. 70446 in the Estate of Late Rupeni Talakuli No.3 on 11th November 2022.

13.	That Succession, Probate and Administration Act (Amendment) No. 06 of 2018, now recognizes De-Facto relationship and as surviving partner of the Deceased, the Plaintiff/Applicant claims entitlement to Letters of Administration Grant.

14.	The Plaintiff/Applicant claims that the Defendant is not entitled to the Letters of Administration Grant in the Estate and therefore seeks orders as enumerated therein in the application.    

Determination

15.	The Defendant is the surviving wife of the late Rupeni Talakuli No. 3. They lived together since their marriage on 24th July 2008 for a period of 12 years and have no issues of the marriage.

16.	Late Rupeni Talakuli No. 3 took demise on 08th August 2022.

17.	Letters of Administration Grant No. 70446 was issued to the Defendant, Litiana Naqilai in the Deceased’s Estate of Rupeni Talakuli No. 3 on 11th November 2022.

18.	According to the Defendant, Litiana Naqilai, the Plaintiff, Meri Caucaunitabua had an extramarital affair with her Deceased’s husband, Rupeni Talakuli No.3 even though she was a married woman.

19.	According to the Plaintiff, Meri Caucaunitabua, the Deceased and the Defendant had separated in or about April 2020.

20.	The Defendant has been having an adulterous relationship with one Epeli Vadei.   

21.	The Plaintiff, Meri Caucaunitabua pleaded in her Affidavit in Support filed on 10th February 2023 that Succession, Probate and Administration (Amendment) Act No. 6 of 2018 now recognizes De-Facto Relationship and as the surviving partner of the Deceased, Rupeni Talakuli No. 3, she is entitled to the Letters of Administration granted in his Estate and that the Defendant, Litiana Naqilai is not entitled to the estate and therefore not entitled to the Grant of Letters of Administration given to her on 11th November, 2022.

22.	That the Plaintiff as the surviving De-Facto partner of the deceased, the Plaintiff is entitled to the whole of Deceased’s Estates including Accident Compensation for his fatal injuries pending with ACCF and therefore seeks for the following orders:

i)	For an order that the Defendant lodges her Grant of Letters of Administration No. 70446 to the Probate Registry 

ii)	That the processing of the Defendant’s pending claim for Compensation by the Accident Compensation Commission [ACCF] be suspended pending the outcome of this Action together with Costs.
  
23.	The Defendant’s further Contentions are that the Plaintiff had failed to disclose to the Court that her marriage was still very much alive on the basis of her marriage. If there were any relationship with the Deceased’s Rupeni Talakuli No. 3 then it was only broken Defacto Relationship of at most three (3) months between the Plaintiff and the Deceased.  

24.	Reference was made to Succession, Probate and Administration Act 06 of 2018 which came into force on 16th March, 2018. Section 2 of the Amendment Act No. 06 of 2018 defines defacto relationship to mean-

“de facto partner” means a person in a de facto relationship;”; and 
“de facto relationship” means a relationship between a man and a woman who are at least 18 years of age and, although not legally married to each other, have lived with each other as spouses on a genuine domestic basis for— 
(a)	a period of more than 3 years; or 
(b)	a period of less than 3 years, provided— 
(i)	the relationship has resulted in the birth or adoption of a child; or 
(ii)	the court, having regard to the circumstances listed in section 154A of the Family Law Act 2003, considers it just to treat the relationship as a de facto relationship;”.

25.	The Plaintiff submitted that the Deceased Rupeni Talakuli No. 3 began living in Defacto relationship in May 2019 until the death of the deceased on 08th August 2022. The defendant had separated from the deceased for over 2 years, having an adulterous relationship with another man when the deceased died on 8th August 2022. Therefore, the Plaintiff was the surviving defacto partner of the Deceased. Immediately prior to his death on 08th August 2022.

26.	Section 6 of the Principal Act is amended by –

(a)	In Subsection(1) – 
(i)	Deleting paragraph (a) and (c) and inserting the following –
(a)	If the  intestate leaves no issue, the surviving wife or husband shall, in addition to the interests taken under paragraph (a), take one-half of the residuary estate absolutely;
(b)	if the intestate leaves issue, but no wife or husband, the issue of the intestate shall take per stirpes and not per capita the whole estate of the intestate absolutely;

27.	The Plaintiff’s Contention therefore is that Section 6 (1) (b) of Succession, Probate and Administration Act amended by Section 3 of Act No. 06 of 2018 is applicable in this case by virtue of Section 6 (1A), the surviving wife [Litiana Naqilai] and the defacto partner [Meri Caucaunitabua] are entitled to the whole of the Deceased’s Estate.

28.	The fact of the matter is that in terms of the parties affidavit evidence and written and oral submission, there is no concrete evidence to prove and/or establish to Court that the Defendant, Litiana Naqilai was separated and/or legally divorced from the Deceased Rupeni Talakuli No. 3 for over a period of time and that their legal marriage had broken down irretrievably.

29.	On the other hand there is no concrete evidence before this court to establish that the Plaintiff, Meri Caucaunitabua had a continuous Defacto relationship with the Deceased, Rupeni Talakuli No. 3 from May 2019 until has demise on 8th August 2022.

30.	Further, the Defence had made submissions that the Deceased, Rupeni Talakuli No.3’s Fiji National Provident Fund [FNPF] was very much intact in terms of nominating the legal wife [Defendant], Litiana Naqilai as one of the nominees of his Fiji National Provident Fund.  

31.	The Deceased would have cancelled and/revoked Litiana Naqilai as the nominee of his Fiji National Provident Fund if the Deceased in fact did not have the legal marriage or relationship intact. Legally, parties were never divorced, that is the fact of the case.

32.	The questions that comes to mind is that even though the Plaintiff in her statement of claim has alleged the Defendant, Litiana Naqilai was having an adulterous relationship with one Epeli Vadei, Does that adulterous relationship takes away the Defendant’s entitlement from the Deceased’s Estate?

33.	The answer is in negative since she still remained married and the legal wife/spouse of the Deceased uptil his demise on 08th August 2022. Therefore, section 6 (a) of the Principal Amended Act comes into effect since the deceased estate leaves the wife, Litiana Naqilai without any issues the surviving wife, Litiana Naiqilai should take the whole of the Deceased’s Estate absolutely.

34.	For the aforesaid rational, I have no alternative but proceed to dismiss the Plaintiff’s Summons coupled with the Affidavit in support and the Amended Writ of Summons together with the Statement of Claim filed on 10th February 2023 accordingly.

Costs

35.	The Application proceeded to full hearing with both parties to the proceedings furnishing court with their written and oral submissions. The Plaintiff/Applicant to pay the Defendant/Respondent summarily assessed costs of $800 within 14 days timeframe.

Orders    

i)	The Plaintiff’s Summons coupled with the Affidavit in support and the Amended Writ of Summons together with the Statement of Claim filed on 10th February 2023 are accordingly dismissed.

ii)	The Plaintiff to pay the Defendant summarily assessed costs of $800 within 14 days timeframe.

 

Dated at Suva this    05th      day of    October        , 2023.

……………………………………………………
VISHWA DATT SHARMA 
JUDGE 

Cc: 	Ravono & Raikaci Law, Nausori.
	Pillai Naidu & Associates, Nadi